A curriculum controversy is roiling schools in the San Francisco Bay Area.  In the past few months, parents in the San Mateo-Foster City School District, located just south of San Francisco International Airport, voiced concerns over changes to the middle school math program. The changes were brought about by the Common Core State Standards (CCSS).  Under previous policies, most eighth graders in the district took algebra I.  Some very sharp math students, who had already completed algebra I in seventh grade, took geometry in eighth grade. The new CCSS-aligned math program will reduce eighth grade enrollments in algebra I and eliminate geometry altogether as a middle school course. 

A little background information will clarify the controversy.  Eighth grade mathematics may be the single grade-subject combination most profoundly affected by the CCSS.  In California, the push for most students to complete algebra I by the end of eighth grade has been a centerpiece of state policy, as it has been in several states influenced by the “Algebra for All” movement that began in the 1990s.  Nationwide, in 1990, about 16 percent of all eighth graders reported that they were taking an algebra or geometry course.  In 2013, the number was three times larger, and nearly half of all eighth graders (48 percent) were taking algebra or geometry.^[i]  When that percentage goes down, as it is sure to under the CCSS, what happens to high achieving math students?

The parents who are expressing the most concern have kids who excel at math.  One parent in San Mateo-Foster City told The San Mateo Daily Journal, “This is really holding the advanced kids back.”^[ii] The CCSS math standards recommend a single math course for seventh grade, integrating several math topics, followed by a similarly integrated math course in eighth grade.  Algebra I won’t be offered until ninth grade.  The San Mateo-Foster City School District decided to adopt a “three years into two” accelerated option.  This strategy is suggested on the Common Core website as an option that districts may consider for advanced students.  It combines the curriculum from grades seven through nine (including algebra I) into a two year offering that students can take in seventh and eighth grades.^[iii]  The district will also provide—at one school site—a sequence beginning in sixth grade that compacts four years of math into three.  Both accelerated options culminate in the completion of algebra I in eighth grade.

The San Mateo-Foster City School District is home to many well-educated, high-powered professionals who work in Silicon Valley.  They are unrelentingly liberal in their politics.  Equity is a value they hold dear.^[iv]  They also know that completing at least one high school math course in middle school is essential for students who wish to take AP Calculus in their senior year of high school.  As CCSS is implemented across the nation, administrators in districts with demographic profiles similar to San Mateo-Foster City will face parents of mathematically precocious kids asking whether the “common” in Common Core mandates that all students take the same math course.  Many of those districts will respond to their constituents and provide accelerated pathways (“pathway” is CCSS jargon for course sequence). 

But other districts will not.  Data show that urban schools, schools with large numbers of black and Hispanic students, and schools located in impoverished neighborhoods are reluctant to differentiate curriculum.  It is unlikely that gifted math students in those districts will be offered an accelerated option under CCSS.  The reason why can be summed up in one word: tracking.

Tracking in eighth grade math means providing different courses to students based on their prior math achievement.  The term “tracking” has been stigmatized, coming under fire for being inequitable.  Historically, where tracking existed, black, Hispanic, and disadvantaged students were often underrepresented in high-level math classes; white, Asian, and middle-class students were often over-represented.  An anti-tracking movement gained a full head of steam in the 1980s.  Tracking reformers knew that persuading high schools to de-track was hopeless.  Consequently, tracking’s critics focused reform efforts on middle schools, urging that they group students heterogeneously with all students studying a common curriculum.  That approach took hold in urban districts, but not in the suburbs.

Now the Common Core and de-tracking are linked.  Providing an accelerated math track for high achievers has become a flashpoint throughout the San Francisco Bay Area.  An October 2014 article in The San Jose Mercury News named Palo Alto, Saratoga, Cupertino, Pleasanton, and Los Gatos as districts that have announced, in response to parent pressure, that they are maintaining an accelerated math track in middle schools.  These are high-achieving, suburban districts.  Los Gatos parents took to the internet with a petition drive when a rumor spread that advanced courses would end.  Ed Source reports that 900 parents signed a petition opposing the move and board meetings on the issue were packed with opponents. The accelerated track was kept.  Piedmont established a single track for everyone, but allowed parents to apply for an accelerated option.  About twenty five percent did so.  The Mercury News story underscores the demographic pattern that is unfolding and asks whether CCSS “could cement a two-tier system, with accelerated math being the norm in wealthy areas and the exception elsewhere.”

What is CCSS’s real role here?  Does the Common Core take an explicit stand on tracking?  Not really.  But de-tracking advocates can interpret the “common” in Common Core as license to eliminate accelerated tracks for high achievers.  As a noted CCSS supporter (and tracking critic), William H. Schmidt, has stated, “By insisting on common content for all students at each grade level and in every community, the Common Core mathematics standards are in direct conflict with the concept of tracking.”^[v]  Thus, tracking joins other controversial curricular ideas—e.g., integrated math courses instead of courses organized by content domains such as algebra and geometry; an emphasis on “deep,” conceptual mathematics over learning procedures and basic skills—as “dog whistles” embedded in the Common Core.  Controversial positions aren’t explicitly stated, but they can be heard by those who want to hear them.    

CCSS doesn’t have to take an outright stand on these debates in order to have an effect on policy.  For the practical questions that local grouping policies resolve—who takes what courses and when do they take them—CCSS wipes the slate clean.  There are plenty of people ready to write on that blank slate, particularly administrators frustrated by unsuccessful efforts to de-track in the past

Suburban parents are mobilized in defense of accelerated options for advantaged students.  What about kids who are outstanding math students but also happen to be poor, black, or Hispanic?  What happens to them, especially if they attend schools in which the top institutional concern is meeting the needs of kids functioning several years below grade level?  I presented a paper on this question at a December 2014 conference held by the Fordham Institute in Washington, DC.  I proposed a pilot program of “tracking for equity.”  By that term, I mean offering black, Hispanic, and poor high achievers the same opportunity that the suburban districts in the Bay Area are offering.  High achieving middle school students in poor neighborhoods would be able to take three years of math in two years and proceed on a path toward AP Calculus as high school seniors.

It is true that tracking must be done carefully.  Tracking can be conducted unfairly and has been used unjustly in the past.  One of the worst consequences of earlier forms of tracking was that low-skilled students were tracked into dead end courses that did nothing to help them academically.  These low-skilled students were disproportionately from disadvantaged communities or communities of color.  That’s not a danger in the proposal I am making.  The default curriculum, the one every student would take if not taking the advanced track, would be the Common Core.  If that’s a dead end for low achievers, Common Core supporters need to start being more honest in how they are selling the CCSS.  Moreover, to ensure that the policy gets to the students for whom it is intended, I have proposed running the pilot program in schools predominantly populated by poor, black, or Hispanic students.  The pilot won’t promote segregation within schools because the sad reality is that participating schools are already segregated.

Since I presented the paper, I have privately received negative feedback from both Algebra for All advocates and Common Core supporters.  That’s disappointing.  Because of their animus toward tracking, some critics seem to support a severe policy swing from Algebra for All, which was pursued for equity, to Algebra for None, which will be pursued for equity.  It’s as if either everyone or no one should be allowed to take algebra in eighth grade.  The argument is that allowing only some eighth graders to enroll in algebra is elitist, even if the students in question are poor students of color who are prepared for the course and likely to benefit from taking it.

The controversy raises crucial questions about the Common Core.  What’s common in the common core?  Is it the curriculum?  And does that mean the same curriculum for all?  Will CCSS serve as a curricular floor, ensuring all students are exposed to a common body of knowledge and skills?  Or will it serve as a ceiling, limiting the progress of bright students so that their achievement looks more like that of their peers?  These questions will be answered differently in different communities, and as they are, the inequities that Common Core supporters think they’re addressing may surface again in a profound form.   

      

       

Editor's Note: This post originally appeared in InsideSources. The author wishes to thank Kevin Lucia for helpful comments and suggestions.

United Health Care’s surprise announcement that it is considering whether to stop selling health insurance through the Affordable Care Act’s health exchanges in 2017 and is also pulling marketing and broker commissions in 2016 has health policy analysts scratching their heads. The announcement is particularly puzzling, as just a month ago, United issued a bullish announcement that it was planning to expand to 11 additional individual markets, taking its total to 34.

United’s stated reason is that this business is unprofitable. That may be true, but it is odd that the largest health insurer in the nation would vacate a growing market without putting up a fight. Is United’s announcement seriously bad news for Obamacare, as many commentators have asserted? Is United seeking concessions in another area and using this announcement as a bargaining chip? Or, is something else going on? The answer, I believe, is that the announcement, while a bit of all of these things, is less significant than many suppose.

To make sense of United’s actions, one has to understand certain peculiarities of United’s business model and some little-understood aspects of the Affordable Care Act.

• Most of United’s business consists of group sales of insurance through employers who offer plans to their employees as a fringe benefit. United has chosen not to sell insurance aggressively to individuals in most places and, where it does, not to offer the lowest-premium plans. In some states, it does not sell to individuals at all.
• In 49 states, insurers may sell plans either through the ACA health exchange or directly to customers outside the exchanges. The exceptions are Vermont and the District of Columbia in which individuals buying insurance must go through their exchanges. Thus, insurers may find that “good” risks—those with below-average use of health care—disproportionately buy directly, while the “poor” risks buy through the exchanges.
• State regulators must review insurance premiums to assure that they are reasonable and set other rules that insurers must follow. This process typically involves some negotiation. With varying skill and intensity, state insurance commissioners try to hold down prices. If they are too lax, buyers may be overcharged. If they are too aggressive, insurers may simply withdraw from the market, causing politically-unpopular inconvenience. These negotiations go on separately in 50 states and the District of Columbia each and every year.
• Finally, fewer people are now expected to buy insurance through the health exchanges than was expected a couple of years ago. ACA subsidies are modest for people with moderate incomes and the penalties for not carrying insurance have been small. Some people with modest incomes face high deductibles, high out-of-pocket costs, narrow networks of providers, or some mix of all three. As a result, some people who expected not to need much health care have chosen to ‘go bare’ and pay the modest penalties for not carrying insurance.

What seems to have happened—one can’t be sure, as the United announcement is Delphic—is that the company, which mostly delayed its participation in the individual exchanges until 2015, incurred substantial start-up costs, enrolled few customers who turned out to be sicker than anticipated, and experienced more-than-anticipated attrition. Other insurers, including Blue-Cross/Blue-Shield plans nation-wide which hold a dominant position in individual markets in many states, did well enough so that Joseph Swedish, CEO of Anthem, Inc., one of the largest of the ‘Blues,’ announced that his company is firmly committed to the exchanges. But minor players in the individual market, such as United, may have concluded that the costs of developing that market are too high for the expected pay-off.

In evaluating these diverse factors, one needs to recognize that the ACA, in general, and the health exchanges, in particular, have changed insurance markets in fundamental ways. Millions of people who were previously uninsured are now trying to understand the bewildering complexities of health insurance. Insurance companies have a lot to learn, too. The ACA now bars insurance companies from ‘underwriting’—the practice of varying premiums based on the characteristics of individual customers, something at which they were quite expert. Under the ACA, insurance companies must sell insurance to all comers, however sick they may be, and must charge premiums that can vary only based on age. Now, companies must ‘manage’ risk, which is easier for a company with a large market share of the individual market, as the Blues have in most states, than it is for a company like United with only a small share.

What this means is that United’s announcement is regrettable news for those states from which they may decide to withdraw, as its departure would reduce competition. United might also use the threat of departure to negotiate favorable terms with states and the Administration. And it means that federal regulators need to write regulations to discourage individual customers from practices that unfairly saddle insurers with risks, such as buying insurance outside open-enrollment periods designed for exceptional circumstances and then dropping coverage a few months later. But it would be a mistake to treat United’s announcement, presumably made for good and sufficient business reasons, as a portentous omen of an ACA crisis.

      

The American people deserve to have a federal government that is both responsive and effective. That simply isn’t the case for more than 1 million people who are awaiting the adjudication of their applications for disability benefits from the Social Security Administration.

Washington can and must do better. This gridlock harms applicants either by depriving them of much-needed support or effectively barring them from work while their cases are resolved because having any significant earnings would immediately render them ineligible. This is unacceptable.

Within the next month, the Government Accountability Office, the nonpartisan congressional watchdog, will launch a study on the issue. More policymakers should follow GAO’s lead. A solution to this problem is long overdue. Here’s how the government can do it.

Congress does not need to look far for an example of how to reduce the SSA backlog. In 2013, the Veterans Administration cut its 600,000-case backlog by 84 percent and reduced waiting times by nearly two-thirds, all within two years. It’s an impressive result.

Why have federal officials dealt aggressively and effectively with that backlog, but not the one at SSA? One obvious answer is that the American people and their representatives recognize a debt to those who served in the armed forces. Allowing veterans to languish while a sluggish bureaucracy dithers is unconscionable. Public and congressional outrage helped light a fire under the bureaucracy. Administrators improved services the old-fashioned way — more staff time. VA employees had to work at least 20 hours overtime per month.

Things are a bit more complicated at SSA, unfortunately. Roughly three quarters of applicants for disability benefits have their cases decided within about nine months and, if denied, decide not to appeal. But those whose applications are denied are legally entitled to ask for a hearing before an administrative law judge — and that is where the real bottleneck begins.

There are too few ALJs to hear the cases. Even in the best of times, maintaining an adequate cadre of ALJs is difficult because normal attrition means that SSA has to hire at least 100 ALJs a year to stay even. When unemployment increases, however, so does the number of applications for disability benefits. After exhausting unemployment benefits, people who believe they are impaired often turn to the disability programs. So, when the Great Recession hit, SSA knew it had to hire many more ALJs. It tried to do so, but SSA cannot act without the help of the Office of Personnel Management, which must provide lists of qualified candidates before agencies can hire them. SSA employs 85 percent of all ALJs and for several years has paid OPM approximately $2 million annually to administer the requisite tests and interviews to establish a register of qualified candidates. Nonetheless, OPM has persistently refused to employ legally trained people to vet ALJ candidates or to update registers. And when SSA sought to ramp up ALJ hiring to cope with the recession challenge, OPM was slow to respond.

In 2009, for example, OPM promised to supply a new register containing names of ALJ candidates. Five years passed before it actually delivered the new list of names. For a time, the number of ALJs deciding cases actually fell. The situation got so bad that the president’s January 2015 budget created a work group headed by the Office of Management and Budget and the Administrative Conference of the United States to try to break the logjam. OPM promised a list for 2015, but insisted it could not change procedures. Not trusting OPM to mend its ways, Congress in October 2015 enacted legislation that explicitly required OPM to administer a new round of tests within the succeeding six months.

These stopgap measures are inadequate to the challenge. Both applicants and taxpayers deserve prompt adjudication of the merits of claims. The million-person backlog and the two-year average waits are bad enough. Many applicants wait far longer. Meanwhile, they are strongly discouraged from working, as anything more than minimal earnings will cause their applications automatically to be denied. Throughout this waiting period, applicants have no means of self-support. Any skills applicants retain atrophy.

The shortage of ALJs is not the only problem. The quality and consistency of adjudication by some ALJs has been called into question. For example, differences in approval rates are so large that differences among applicants cannot plausibly explain them. Some ALJs have processed so many cases that they could not possibly have applied proper standards. In recognition of both problems, SSA has increased oversight and beefed up training. The numbers have improved. But large and troubling variations in workloads and approval rates persist.

For now, political polarization blocks agreement on whether and how to modify eligibility rules and improve incentives to encourage work by those able to work. But there is bipartisan agreement that dragging out the application process benefits no one. While completely eliminating hearing delays is impossible, adequate administrative funding and more, better trained hearing officers would help reduce them. Even if OPM’s past record were better than it is, OPM is now a beleaguered agency, struggling to cope with the fallout from a security breach that jeopardizes the security of the nation and the privacy of millions of current and past federal employees and federal contractors. Mending this breach and establishing new procedures will — and should — be OPM’s top priority.

That’s why, for the sake of everyone concerned, responsibility for screening candidates for administrative law judge positions should be moved, at least temporarily, to another agency, such as the Administrative Conference of the United States. Shortening the period that applicants for disability benefits now spend waiting for a final answer is an achievable goal that can and should be addressed. Our nation’s disabled and its taxpayers deserve better.

---

Editor's note: This piece originally appeared in Politico.

       

       

       

       

       

       

The injustices faced by African Americans are high on the nation’s agenda. “Black Lives Matter” has become a rallying cry that has elicited intense feelings among both supporters and detractors. As William Julius Wilson has pointed out on this blog, the focus on policing and criminal justice is necessary but not sufficient. Concerted action is required to tackle systematic racial gaps in everything from income and wealth to employment rates, poverty rates, and educational achievement.

The moral argument for reparations

Ta-Nehisi Coates argues that financial reparations should be paid to all those who have suffered directly or indirectly from slavery and its aftermath, including present day injustices such as the targeting of subprime mortgages to minorities. The moral case is compelling, and Coates notes that there have been other instances in U.S. history when reparations have been paid—such as to some Native American tribes and to the Japanese-Americans thrown into internment camps during World War II.

Even if the moral argument for reparations is won, there are formidable obstacles in terms of policy, politics, and law. How would reparations work in practice? To be fair, Coates does support the bill from Congressman John Conyers establishing a commission to examine precisely these questions. Even if a workable policy can be found, the political opposition would, to put it mildly, be formidable. There are also doubts about constitutional legality. However, these are certainly questions worthy of better answers than the ones currently being made.

Race-conscious policy

Reparations are a stark example of a race-based policy: targeting resources or an intervention at an explicitly-defined racial group. At the other extreme are “race-blind” policies, applied with no regard to race (at least in theory). But there is a middle ground, consisting of what might be labeled ‘race-conscious’ policies. These policies would be designed to close racial gaps without targeting racial groups.

Bonds, jobs, tax credits: examples of race-conscious policies

What might race-conscious policies look like? Here are some ideas:

1. Professors William Darity at Duke and Darrick Hamilton of The New School propose to tackle race gaps in wealth by providing “baby bonds” to children born to families with limited wealth. In 2013, median net worth was $11,000 for black households compared to $141,900 for whites. Darity and Hamilton are supporters of reparations in principle, but are alert to policy and political feasibility. Their specific proposal is that every baby born into a family with below-median wealth receives a “baby bond” or trust fund. These would be worth $50,000 to $60,000 on average, but scaled according to the level of the family’s wealth. The money would be available at the age of 18 for certain expenditures such as paying for college or buying a home. This is a good example of a race-conscious policy. It is not explicitly targeted on race but it would have its greatest impact on African American families.
2. While racial wealth gaps are large and troubling, the disappearance of almost half of unskilled, young black men from the labor force may be an even greater problem in the long run. A comprehensive approach on jobs could include raising the minimum wage, expanding the EITC, and providing subsidized jobs in either the public or private sector for those unable to find jobs on their own. The job subsidies might be targeted on young adults from high-poverty neighborhoods where joblessness is endemic. The subsidized jobs would help people of all races, but especially African Americans. A jobs-based program is also likely to find greater political support than straightforward wealth redistribution. Granted, such jobs programs are hard to administer, but we now have a large number of workers whose job prospects are slim to nonexistent in a technologically-oriented and service-based economy.
3. An enhanced EITC could also help to increase wealth (or lower indebtedness). As Kathryn Edin and her colleagues note in It’s Not Like I’m Poor, the EITC is normally received as a lump sum refund at the end of the year. As a form of forced saving, it enables poor families to repay debt and make mobility enhancing investments in themselves or their children. According to Edin, recipients like the fact that, unlike welfare, the tax credit links them socially and psychologically to other Americans who receive tax refunds. A more generous EITC could therefore help on the wealth as well as income side, and narrow racial gaps in both.
4. A final example of a race-conscious policy is the Texas “top 10” law, which guarantees admission to any public university in the state for students in the top 10 percent of their high school class. This plan could be expanded to other states.

Taking race seriously

The “Black Lives Matter” movement has refocused the nation’s attention on mass incarceration and related injustices in the criminal justice system. But this problem exists side by side with racial inequalities in income, wealth, education, and employment. There are no easy answers to America’s stubborn race gaps. But jobs and wages seem to us to be of paramount importance. Implemented in a race-conscious way (by targeting them to areas suffering from high rates of poverty and joblessness), employment policy might be the most powerful instrument of all for race equality.

      

       

       

Executive Summary

Two-thirds of Americans have broadband Internet access in their homes.[1] But because of poor infrastructure or high prices, the remaining third of Americans do not. In some areas, broadband Internet is plainly unavailable because of inadequate infrastructure: More than 14 million Americans – approximately 5 percent of the total population – live in areas where terrestrial (as opposed to mobile) fixed broadband connectivity is unavailable.[2] The effects of insufficient infrastructure development have contributed to racial and cultural disparities in broadband access; for example, terrestrial broadband is available to only 10 percent of residents on tribal lands.[3]

Even where terrestrial broadband connectivity is available, however, the high price of broadband service can be prohibitive, especially to lower income Americans. While 93 percent of adults earning more than $75,000 per year are wired for broadband at home, the terrestrial broadband adoption rate is only 40 percent among adults earning less than $20,000 annually.[4] These costs also contribute to racial disparities; almost 70 percent of whites have adopted terrestrial broadband at home,   but only 59 percent of blacks and 49 percent of Hispanics have done the same.[5]

America's wireless infrastructure is better developed, but many Americans still lack wireless broadband coverage. According to a recent study, 3G wireless networks cover a good portion of the country, including 98 percent of the United States population,[6] but certain states have dramatically lower coverage rates than others. For example, only 71 percent of West Virginia's population is covered by a 3G network.[7] Wireless providers will likely use existing 3G infrastructure to enable the impending transition to 4G networks.[8] Unless wireless infrastructure expands quickly, those Americans that remain unconnected may be left behind.

Though America is responsible for the invention and development of Internet technology, the United States has fallen behind competing nations on a variety of important indicators, including broadband adoption rate and price. According to the Organization for Economic Cooperation and Development's survey of 31 developed nations, the United States is ranked fourteenth in broadband penetration rate (i.e. the number of subscribers per 100 inhabitants); only 27.1 percent of Americans have adopted wired broadband subscriptions, compared to 37.8 percent of residents of the Netherlands.[9]

America also trails in ensuring the affordability of broadband service. The average price for a medium-speed (2.5Mbps-10Mbps) Internet plan in America is the seventeenth lowest among its competitor nations. For a medium-speed plan, the average American must pay $38 per month, while an average subscriber in Japan (ranked first) pays only $22 for a connection of the same quality.[10]

The National Broadband Plan (NBP), drafted by the Federal Communication Commission and released in 2010, seeks to provide all Americans with affordable broadband Internet access.[11] Doing so will not be cheap; analysts project that developing the infrastructure necessary for full broadband penetration will require $24 billion in subsidies and spending.[12] President Obama’s stimulus package has already set aside $4.9 billion to develop broadband infrastructure,[13] and some small ongoing federal programs receive an annual appropriation to promote broadband penetration.[14] However, these funding streams will only account for one-third of the $24 billion necessary to achieve the FCC's goal of full broadband penetration.[15] Moreover, developing infrastructure alone is not enough; many low-income Americans are unable to afford Internet access, even if it is offered in their locality.

To close this funding gap and to make broadband more accessible, the National Broadband Plan proposes to transform the Universal Service Fund – a subsidy program that spends $8.7 billion every year to develop infrastructure and improve affordability for telephone service – into a program that would do the same for broadband Internet.

Downloads

• Download the Full Paper

       

Introduction

It was 2025 when Facebook decided to post live feeds from public and private surveillance cameras, so they could be searched online. The decision hardly came as a surprise. Ever since Facebook passed the 500 million-member mark in 2010, it found increasing consumer demand for applications that allowed users to access surveillance cameras with publicly accessible IP addresses. (Initially, live feeds to cameras on Mexican beaches were especially popular.) But in the mid-2020s, popular demand for live surveillance camera feeds were joined by demands from the U.S. government that an open circuit television network would be invaluable in tracking potential terrorists. As a result, Facebook decided to link the public and private camera networks, post them live online, and store the video feeds without restrictions on distributed servers in the digital cloud.

Once the new open circuit system went live, anyone in the world could log onto the Internet, select a particular street view on Facebook maps and zoom in on a particular individual. Anyone could then back click on that individual to retrace her steps since she left the house in the morning or forward click on her to see where she was headed in the future. Using Facebook’s integrated face recognition app, users could click on a stranger walking down any street in the world, plug her image into the Facebook database to identify her by name, and then follow her movements from door-to-door. Since cameras were virtually ubiquitous in public and commercial spaces, the result was the possibility of ubiquitous identification and surveillance of all citizens virtually anywhere in the world—and by anyone. In an enthusiastic launch, Mark Zuckerberg dubbed the new 24/7 ubiquitous surveillance system “Open Planet.”

Open Planet is not a technological fantasy. Most of the architecture for implementing it already exists, and it would be a simple enough task for Facebook or Google, if the companies chose, to get the system up and running: face recognition is already plausible, storage is increasing exponentially; and the only limitation is the coverage and scope of the existing cameras, which are growing by the day. Indeed, at a legal Futures Conference at Stanford in 2007, Andrew McLaughlin, then the head of public policy at Google, said he expected Google to get requests to put linked surveillance networks live and online within the decade. How, he, asked the audience of scholars and technologists, should Google respond?

If “Open Planet” went live, would it violate the Constitution? The answer is that it might not under Supreme Court doctrine as it now exists—at least not if it were a purely-private affair, run by private companies alone and without government involvement. Both the First Amendment, which protects free speech, and the Fourth Amendment, which prohibits unreasonable searches and seizures, only restrict actions by the government. On the other hand, if the government directed Open Planet’s creation or used it to track citizens on government-owned, as well as private-sector, cameras, perhaps Facebook might be viewed as the equivalent of a state actor, and therefore restricted by the Constitution.

At the time of the framing of the Constitution, a far less intrusive invasion of privacy – namely, the warrantless search of private homes and desk drawers for seditious papers – was considered the paradigmatic case of an unreasonable and unconstitutional invasion of privacy. The fact that 24/7 ubiquitous surveillance may not violate the Constitution today suggests the challenge of translating the framers’ values into a world in which Google and Facebook now have far more power over the privacy and free speech of most citizens than any King, president, or Supreme Court justice. In this essay, I will examine four different areas where the era of Facebook and Google will challenge our existing ideas about constitutional protections for free speech and privacy: ubiquitous surveillance with GPS devices and online surveillance cameras; airport body scanners; embarrassing Facebook photos and the problem of digital forgetting; and controversial YouTube videos. In each area, I will suggest, preserving constitutional values requires a different balance of legal and technological solutions, combined with political mobilization that leads to changes in social norms.

Let’s start with Open Planet, and imagine sufficient government involvement to make the courts plausibly consider Facebook’s program the equivalent of state action. Imagine also that the Supreme Court in 2025 were unsettled by Open Planet and inclined to strike it down. A series of other doctrines might bar judicial intervention. The Court has come close to saying that we have no legitimate expectations of privacy in public places, at least when the surveillance technologies in question are in general public use by ordinary members of the public.[1]  As mobile camera technology becomes ubiquitous, the Court might hold that the government is entitled to have access to the same linked camera system that ordinary members of the public have become accustomed to browsing. Moreover, the Court has said that we have no expectation of privacy in data that we voluntarily surrender to third parties.[2] In cases where digital images are captured on cameras owned by third parties and stored in the digital cloud—that is, on distributed third party servers--we have less privacy than citizens took for granted at the time of the American founding. And although the founders expected a degree of anonymity in public, that expectation would be defeated by the possibility of 24/7 surveillance on Facebook.

The doctrinal seeds of a judicial response to Open Planet, however, do exist. A Supreme Court inclined to strike down ubiquitous surveillance might draw on recent cases involving decisions by the police to place a GPS tracking device on the car of a suspect without a warrant, tracking his movements 24/7. The Supreme Court has not yet decided whether prolonged surveillance, in the form of “dragnet-type law enforcement practices” violates the Constitution.[3] Three federal circuits have held that the use of a GPS tracking device to monitor someone’s movements in a car over a prolonged period is not a search because we have no expectations of privacy in our public movements.[4] But in a visionary opinion in 2010, Judge Douglas Ginsburg of the U.S. Court of Appeals disagreed. Prolonged surveillance is a search, he recognized, because no reasonable person expects that his movements will be continuously monitored from door to door; all of us have a reasonable expectation of privacy in the “whole” of our movements in public. [5] Ginsburg and his colleagues struck down the warrantless GPS surveillance of a suspect that lasted 24 hours a day for nearly a month on the grounds that prolonged, ubiquitous tracking of citizen’s movements in public is constitutionally unreasonable. “Unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil,” Ginsburg wrote. Moreover, “That whole reveals more – sometimes a great deal more – than does the sum of its parts.”[6] Like the “mosaic theory” invoked by the government in national security cases, Ginsburg concluded that “Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.  These types of information can each reveal more about a person than does any individual trip viewed in isolation.”[7] Ginsburg understood that 24/7 ubiquitous surveillance differs from more limited tracking not just in degree but in kind – it looks more like virtual stalking than a legitimate investigation – and therefore is an unreasonable search of the person.

Because prolonged surveillance on “Open Planet” potentially reveals far more about each of us than 24/7 GPS tracking does, providing real time images of all our actions, rather than simply tracking the movements of our cars, it could also be struck down as an unreasonable search of our persons. And if the Supreme Court struck down Open Planet on Fourth Amendment grounds, it might be influenced by the state regulations of GPS surveillance that Ginsburg found persuasive, or by Congressional attempts to regulate Facebook or other forms of 24/7 surveillance, such as the Geolocational Privacy and Surveillance Act proposed by Sen. Ron Wyden (D-OR) that would require officers to get a warrant before electronically tracking cell phones or cars.[8]

The Supreme Court in 2025 might also conceivably choose to strike down Open Planet on more expansive grounds, relying not just on the Fourth Amendment, but on the right to autonomy recognized in cases like Casey v. Planned Parenthood and Lawrence v. Texas. The right to privacy cases, beginning with Griswold v. Connecticut and culminating in Roe v. Wade and Lawrence, are often viewed as cases about sexual autonomy, but in Casey and Lawrence, Justice Anthony Kennedy recognized a far more sweeping principle of personal autonomy that might well protect individuals from totalizing forms of ubiquitous surveillance. Imagine an opinion written in 2025 by Justice Kennedy, still ruling the Court and the country at the age of 89. “In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence,” Kennedy wrote in Lawrence. “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[9] Kennedy’s vision of an “autonomy of self” that depends on preventing the state from becoming a “dominant presence” in public as well as private places might well be invoked to prevent the state from participating in a ubiquitous surveillance system that prevents citizens from defining themselves and expressing their individual identities. Just as citizens in the Soviet Union were inhibited from expressing and defining themselves by ubiquitous KGB surveillance, Kennedy might hold, the possibility of ubiquitous surveillance on “Open Planet” also violates the right to autonomy, even if the cameras in question are owned by the private sector, as well as the state, and a private corporation provides the platform for their monitoring.  Nevertheless, the fact that the system is administered by Facebook, rather than the Government, might be an obstacle to a constitutional ruling along these lines. And if Kennedy (or his successor) struck down “Open Planet” with a sweeping vision of personal autonomy that didn’t coincide with the actual values of a majority of citizens in 2025, the decision could be the Roe of virtual surveillance, provoking backlashes from those who don’t want the Supreme Court imposing its values on a divided nation.

Would the Supreme Court, in fact, strike down “Open Planet” in 2025? If the past is any guide, the answer may depend on whether the public, in 2025, views 24/7 ubiquitous surveillance as invasive and unreasonable, or whether citizens have become so used to ubiquitous surveillance on and off the web, in virtual space and real space, that the public demands “Open Planet” rather than protesting against it. I don’t mean to suggest that the Court actually reads the polls. But in the age of Google and Facebook, technologies that thoughtfully balance privacy with free expression and other values have tended to be adopted only when companies see their markets as demanding some kind of privacy protection, or when engaged constituencies have mobilized in protest against poorly designed architectures and demanded better ones, helping to create a social consensus that the invasive designs are unreasonable.

The paradigmatic case of the kind of political mobilization on behalf of constitutional values that I have in mind is presented by my second case: the choice between the naked machine and the blob machine in airport security screening. In 2002, officials at Orlando International airport first began testing the millimeter wave body scanners that are currently at the center of a national uproar. The designers of the scanners at Pacific Northwest Laboratories offered U.S. officials a choice: naked machines or blob machines? The same researchers had developed both technologies, and both were equally effective at identifying contraband. But, as their nicknames suggest, the former displays graphic images of the human body, while the latter scrambles the images into a non-humiliating blob.[10]

Since both versions of the scanners promise the same degree of security, any sane attempt to balance privacy and safety would seem to favor the blob machines over the naked machines. And that’s what European governments chose. Most European airport authorities have declined to adopt body scanners at all, because of persuasive evidence that they’re not effective at detecting low-density contraband such as the chemical powder PETN that the trouser bomber concealed in his underwear on Christmas day, 2009. But the handful of European airports that have adopted body scanners, such as Schiphol airport in Amsterdam, have opted for a version of the blob machine. This is in part due to the efforts of European privacy commissioners, such as Germany’s Peter Schaar, who have emphasized the importance of designing body scanners in ways that protect privacy.

The U.S. Department of Homeland Security made a very different choice. It deployed the naked body scanners without any opportunity for public comment—then appeared surprised by the backlash. Remarkably, however, the backlash was effective. After a nationwide protest inspired by the Patrick Henry of the anti-Naked Machines movement, a traveler who memorably exclaimed “Don’t Touch my Junk,” President Obama called on the TSA to go back to the drawing board. And a few months after authorizing the intrusive pat downs, in February 2011, the TSA announced that it would begin testing, on a pilot basis, versions of the very same blob machines that the agency had rejected nearly a decade earlier. According to the latest version, to be tested in Las Vegas and Washington, D.C, the TSA will install software filters on its body scanner machines that detects potential threat items and indicates their location on a generic, blob like outline of each passenger that will appear on a monitor attached to the machine. Passengers without suspicious items will be cleared as “OK,” those with suspicious items will be taken aside for additional screening. The remote rooms in which TSA agents view images of the naked body will be eliminated. According to news reports, TSA began testing the filtering software in the fall of 2010 – precisely when the protests against the naked machines went viral. If the filtering software is implemented across the country, converting naked machines into blob machines, the political victory for privacy will be striking.

Of course, it’s possible that courts might strike down the naked machines as unreasonable and unconstitutional, even without the political protests. In a 1983 opinion upholding searches by drug-sniffing dogs, Justice Sandra Day O’Connor recognized that a search is most likely to be considered constitutionally reasonable if it is very effective at discovering contraband without revealing innocent but embarrassing information.[11] The backscatter machines seem, under O'Connor's view, to be the antithesis of a reasonable search: They reveal a great deal of innocent but embarrassing information and are remarkably ineffective at revealing low-density contraband.

It’s true that the government gets great deference in airports and at the borders, where routine border searches don’t require heightened suspicion. But the Court has held that non-routine border searches, such as body cavity or strip searches, do require a degree of individual suspicion.  And although the Supreme Court hasn't evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that "a particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.'"[12]

It’s arguable that since the naked machines are neither effective nor minimally intrusive – that is, because they might be designed with blob machine like filters that promise just as much security while also protecting privacy – that courts might strike them down. As a practical matter, however, both lower courts and the Supreme Court seem far more likely to strike down strip searches that have inspired widespread public opposition – such as the strip search of a high school girl wrongly accused of carrying drugs, which the Supreme Court invalidated by a vote of 8-1,[13] then they are of searches that, despite the protests of a mobilized minority, the majority of the public appears to accept.

The tentative victory of the blob machines over the naked machines, if it materializes, provides a model for successful attempts to balance privacy and security: government can be pressured into striking a reasonable balance between privacy and security by a mobilized minority of the public when the privacy costs of a particular technology are dramatic, visible, widely distributed, and people experience the invasions personally as a kind of loss of control over the conditions of their own exposure.

But can we be mobilized to demand a similarly reasonable balance when the threats to privacy come not from the government but from private corporations and when those responsible for exposing too much personal information about us are none other than ourselves? When it comes to invasions of privacy by fellow citizens, rather than by the government, we are in the realm not of autonomy but of dignity and decency. (Autonomy preserves a sphere of immunity from government intrusion in our lives; dignity protects the norms of social respect that we accord to each other.) And since dignity is a socially constructed value, it’s unlikely to be preserved by judges--or by private corporations--in the face of the expressed preferences of citizens who are less concerned about dignity than exposure.

This is the subject of our third case, which involves a challenge that, in big and small ways, is confronting millions of people around the globe: how best to live our lives in a world where the Internet records everything and forgets nothing—where every online photo, status update, Twitter post and blog entry by and about us can be stored forever.[14] Consider the case of Stacy Snyder. Four years ago, Snyder, then a 25-year-old teacher in training at Conestoga Valley High School in Lancaster, Pa., posted a photo on her MySpace page that showed her at a party wearing a pirate hat and drinking from a plastic cup, with the caption “Drunken Pirate.” After discovering the page, her supervisor at the high school told her the photo was “unprofessional,” and the dean of Millersville University School of Education, where Snyder was enrolled, said she was promoting drinking in virtual view of her under-age students. As a result, days before Snyder’s scheduled graduation, the university denied her a teaching degree. Snyder sued, arguing that the university had violated her First Amendment rights by penalizing her for her (perfectly legal) after-hours behavior. But in 2008, a federal district judge rejected the claim, saying that because Snyder was a public employee whose photo didn’t relate to matters of public concern, her “Drunken Pirate” post was not protected speech.[15]

When historians of the future look back on the perils of the early digital age, Stacy Snyder may well be an icon. With Web sites like LOL Facebook Moments, which collects and shares embarrassing personal revelations from Facebook users, ill-advised photos and online chatter are coming back to haunt people months or years after the fact.

Technological advances, of course, have often presented new threats to privacy. In 1890, in perhaps the most famous article on privacy ever written, Samuel Warren and Louis Brandeis complained that because of new technology — like the Kodak camera and the tabloid press — “gossip is no longer the resource of the idle and of the vicious but has become a trade.”[16] But the mild society gossip of the Gilded Age pales before the volume of revelations contained in the photos, video and chatter on social-media sites and elsewhere across the Internet. Facebook, which surpassed MySpace in 2008 as the largest social-networking site, now has more than 500 million members, or 22 percent of all Internet users, who spend more than 500 billion minutes a month on the site. Facebook users share more than 25 billion pieces of content each month (including news stories, blog posts and photos), and the average user creates 70 pieces of content a month.

Today, as in Brandeis’s day, the value threatened by gossip on the Internet – whether posted by us our by others – is dignity. (Brandeis called it an offense against honor.) But American law has never been good at regulating offenses against dignity – especially when regulations would clash with other values, such as protections for free speech. And indeed, the most ambitious proposals in Europe to create new legal rights to escape your past on the Internet are very hard to reconcile with the American free speech tradition.

The cautionary tale here is Argentina, which has dramatically expanded the liability of search engines like Google and Yahoo for offensive photographs that harm someone’s reputation. Recently, an Argentinean judge held Google and Yahoo liable for causing “moral harm” and violating the privacy of Virginia Da Cunha, a pop star, by indexing pictures of her that were linked to erotic content. The ruling against Google and Yahoo was overturned on appeal in August, but there are at least 130 similar cases pending in Argentina to force search engines to remove or block offensive content. In the U.S., search engines are protected by the Communications Decency Act, which immunizes Internet service providers from hosting content posted by third parties. But as liability against search engines expands abroad, it will seriously curtain free speech:  Yahoo says that the only way to comply with injunctions about is to block all sites that refer to a particular plaintiff.[17]

In Europe, recent proposals to create a legally enforceable right to escape your past have come from the French. The French data commissioner, Alex Turc, who has proposed a right to oblivion – namely a right to escape your past on the Internet. The details are fuzzy, but it appears that the proposal would rely on an international body – say a commission of forgetfulness – to evaluate particular take down requests and order Google and Facebook to remove content that, in the view of commissioners, violated an individuals’ dignitary rights.

From an American perspective, the very intrusiveness of this proposal is enough to make it implausible: how could we rely on bureaucrats to protect our dignity in cases where we have failed to protect it on our own? Europeans, who have less of a free speech tradition and far more of a tradition of allowing people to remove photographs taken and posted against their will, will be more sympathetic to the proposal. But from the perspective of most American courts and companies, giving people the right selectively to delete their pasts from public discourse would pose unacceptably great threats to free speech.

A far more promising solution to the problem of forgetting on the Internet is technological. And there are already small-scale privacy apps that offer disappearing data. An app called TigerText allows text-message senders to set a time limit from one minute to 30 days, after which the text disappears from the company’s servers, on which it is stored, and therefore, from the senders’ and recipients’ phones. (The founder of TigerText, Jeffrey Evans, has said he chose the name before the scandal involving Tiger Woods’s supposed texts to a mistress.)[18]

Expiration dates could be implemented more broadly in various ways. Researchers at the University of Washington, for example, are developing a technology called Vanish that makes electronic data “self-destruct” after a specified period of time. Instead of relying on Google, Facebook or Hotmail to delete the data that is stored “in the cloud” — in other words, on their distributed servers — Vanish encrypts the data and then “shatters” the encryption key. To read the data, your computer has to put the pieces of the key back together, but they “erode” or “rust” as time passes, and after a certain point the document can no longer be read. The technology doesn’t promise perfect control — you can’t stop someone from copying your photos or Facebook chats during the period in which they are not encrypted. But as Vanish improves, it could bring us much closer to a world where our data don’t linger forever.

Facebook, if it wanted to, could implement expiration dates on its own platform, making our data disappear after, say, three days or three months unless a user specified that he wanted it to linger forever. It might be a more welcome option for Facebook to encourage the development of Vanish-style apps that would allow individual users who are concerned about privacy to make their own data disappear without imposing the default on all Facebook users.

So far, however, Zuckerberg, Facebook’s C.E.O., has been moving in the opposite direction — toward transparency, rather than privacy. In defending Facebook’s recent decision to make the default for profile information about friends and relationship status public, Zuckerberg told the founder of the publication TechCrunch that Facebook had an obligation to reflect “current social norms” that favored exposure over privacy. “People have really gotten comfortable not only sharing more information and different kinds but more openly and with more people, and that social norm is just something that has evolved over time,” [19] he said.

It’s true that a German company, X-Pire, recently announced the launch of a Facebook app that will allow users automatically to erase designated photos. Using electronic keys that expire after short periods of time, and obtained by solving a Captcha, or graphic that requires users to type in a fixed number combinations, the application ensures that once the time stamp on the photo has expired, the key disappears.[20] X-Pire is a model for a sensible, blob-machine-like solution to the problem of digital forgetting. But unless Facebook builds X-Pire-like apps into its platform – an unlikely outcome given its commercial interests – a majority of Facebook users are unlikely to seek out disappearing data options until it’s too late. X-Pire, therefore, may remain for the foreseeable future a technological solution to a grave privacy problem—but a solution that doesn’t have an obvious market.

The courts, in my view, are better equipped to regulate offenses against autonomy, such as 24/7 surveillance on Facebook, than offenses against dignity, such as drunken Facebook pictures that never go away. But that regulation in both cases will likely turn on evolving social norms whose contours in twenty years are hard to predict.

Finally, let’s consider one last example of the challenge of preserving constitutional values in the age of Facebook and Google, an example that concerns not privacy but free speech.[21]

At the moment, the person who arguably has more power than any other to determine who may speak and who may be heard around the globe isn’t a king, president or Supreme Court justice. She is Nicole Wong, the deputy general counsel of Google, and her colleagues call her “The Decider.” It is Wong who decides what controversial user-generated content goes down or stays up on YouTube and other applications owned by Google, including Blogger, the blog site; Picasa, the photo-sharing site; and Orkut, the social networking site. Wong and her colleagues also oversee Google’s search engine: they decide what controversial material does and doesn’t appear on the local search engines that Google maintains in many countries in the world, as well as on Google.com. As a result, Wong and her colleagues arguably have more influence over the contours of online expression than anyone else on the planet.

At the moment, Wong seems to be exercising that responsibility with sensitivity to the values of free speech. Google and Yahoo can be held liable outside the United States for indexing or directing users to content after having been notified that it was illegal in a foreign country. In the United States, by contrast, Internet service providers are protected from most lawsuits involving having hosted or linked to illegal user-generated content. As a consequence of these differing standards, Google has considerably less flexibility overseas than it does in the United States about content on its sites, and its “information must be free” ethos is being tested abroad.

For example, on the German and French default Google search engines, Google.de and Google.fr, you can’t find Holocaust-denial sites that can be found on Google.com, because Holocaust denial is illegal in Germany and France. Broadly, Google has decided to comply with governmental requests to take down links on its national search engines to material that clearly violates national laws. But not every overseas case presents a clear violation of national law. In 2006, for example, protesters at a Google office in India demanded the removal of content on Orkut, the social networking site, that criticized Shiv Sena, a hard-line Hindu political party popular in Mumbai. Wong eventually decided to take down an Orkut group dedicated to attacking Shivaji, revered as a deity by the Shiv Sena Party, because it violated Orkut terms of service by criticizing a religion, but she decided not to take down another group because it merely criticized a political party. “If stuff is clearly illegal, we take that down, but if it’s on the edge, you might push a country a little bit,” Wong told me. “Free-speech law is always built on the edge, and in each country, the question is: Can you define what the edge is?”

Over the past couple of years, Google and its various applications have been blocked, to different degrees, by 24 countries. Blogger is blocked in Pakistan, for example, and Orkut in Saudi Arabia. Meanwhile, governments are increasingly pressuring telecom companies like Comcast and Verizon to block controversial speech at the network level. Europe and the U.S. recently agreed to require Internet service providers to identify and block child pornography, and in Europe there are growing demands for network-wide blocking of terrorist-incitement videos. As a result, Wong and her colleagues worry that Google’s ability to make case-by-case decisions about what links and videos are accessible through Google’s sites may be slowly circumvented, as countries are requiring the companies that give us access to the Internet to build top-down censorship into the network pipes.

It is not only foreign countries that are eager to restrict speech on Google and YouTube. In May, 2006, Joseph Lieberman who has become the A. Mitchell Palmer of the digital age, had his staff contacted Google and demanded that the company remove from YouTube dozens of what he described as jihadist videos. After viewing the videos one by one, Wong and her colleagues removed some of the videos but refused to remove those that they decided didn’t violate YouTube guidelines. Lieberman wasn’t satisfied. In an angry follow-up letter to Eric Schmidt, the C.E.O. of Google, Lieberman demanded that all content he characterized as being “produced by Islamist terrorist organizations” be immediately removed from YouTube as a matter of corporate judgment — even videos that didn’t feature hate speech or violent content or violate U.S. law. Wong and her colleagues responded by saying, “YouTube encourages free speech and defends everyone’s right to express unpopular points of view.” Recently, Google and YouTube announced new guidelines prohibiting videos “intended to incite violence.”

That category scrupulously tracks the Supreme Court’s rigorous First Amendment doctrine, which says that speech can be banned only when it poses an imminent threat of producing serious lawless action. Unfortunately, Wong and her colleagues recently retreated from that bright line under further pressure from Lieberman. In November, 2010, YouTube added a new category that viewers can click to flag videos for removal: “promotes terrorism.” There are 24 hours of video uploaded on YouTube every minute, and a series of categories viewers can use to request removal, including “violent or repulsive content” or inappropriate sexual content. Although hailed by Senator Lieberman, the new “promotes terrorism category” is potentially troubling because it goes beyond the narrow test of incitement to violence that YouTube had previously used to flag terrorism related videos for removal. YouTube’s capitulation to Lieberman shows that a user generated system for enforcing community standards will never protect speech as scrupulously as unelected judges enforcing strict rules about when speech can be viewed as a form of dangerous conduct.

Google remains a better guardian for free speech than internet companies like Facebook and Twitter, which have refused to join the Global Network Initiative, an industry-wide coalition committed to upholding free speech and privacy. But the recent capitulation of YouTube shows that Google’s “trust us” model may not be a stable way of protecting free speech in the twenty-first century, even though the alternatives to trusting Google – such as authorizing national regulatory bodies around the globe to request the removal of controversial videos – might protect less speech than Google’s “Decider” model currently does.

I’d like to conclude by stressing the complexity of protecting constitutional values like privacy and free speech in the age of Google and Facebook, which are not formally constrained by the Constitution. In each of my examples – 24/7 Facebook surveillance, blob machines, escaping your Facebook past, and promoting free speech on YouTube and Google -- it’s possible to imagine a rule or technology that would protect free speech and privacy, while also preserving security—a blob-machine like solution. But in some areas, those blob-machine-like solutions are more likely, in practice, to be adopted then others. Engaged minorities may demand blob machines when they personally experience their own privacy being violated; but they may be less likely to rise up against the slow expansion of surveillance cameras, which transform expectations of privacy in public. Judges in the American system may be more likely to resist ubiquitous surveillance in the name of Roe v. Wade-style autonomy than they are to create a legal right to allow people to edit their Internet pasts, which relies on ideas of dignity that in turn require a social consensus that in America, at least, does not exist. As for free speech, it is being anxiously guarded for the moment by Google, but the tremendous pressures, from consumers and government are already making it hard to hold the line at removing only speech that threatens imminent lawless action.

In translating constitutional values in light of new technologies, it’s always useful to ask: What would Brandeis do? Brandeis would never have tolerated unpragmatic abstractions, which have the effect of giving citizens less privacy in the age of cloud computing than they had during the founding era. In translating the Constitution into the challenges of our time, Brandeis would have considered it a duty actively to engage in the project of constitutional translation in order to preserve the Framers’ values in a startlingly different technological world. But the task of translating constitutional values can’t be left to judges alone: it also falls to regulators, legislators, technologists, and, ultimately, to politically engaged citizens. As Brandeis put it, “If we would guide by the light of reason, we must let our minds be bold.”

Downloads

• Download the Full Paper

       

       

       

       

       

       

       

       

       

       

       

       

The global consumer products company Unilever Plc announced on Monday a $35 million investment in Cuba’s Special Development Zone at Mariel. Late last year, Brascuba, a joint venture with a Brazilian firm, Souza Cruz, owned by the mega-conglomerate British American Tobacco (BAT), confirmed it would built a $120 million facility in the same location.

So far, these are the two biggest investments in the much-trumpeted Cuban effort to attract foreign investment, outside of traditional tourism. Yet, neither investment is really new. Unilever had been operating in Cuba since the mid-1990s, only to exit a few years ago in a contract dispute with the Cuban authorities. Brascuba will be moving its operations from an existing factory to the ZED Mariel site.

What is new is the willingness of Cuban authorities to accede to the corporate requirements of foreign investors. Finally, the Cubans appear to grasp that Cuba is a price-taker, and that it must fit into the global strategies of their international business partners. Certainly, Cuban negotiators can strike smart deals, but they cannot dictate the over-arching rules of the game.

Cuba still has a long way to go before it reaches the officially proclaimed goal of $2.5 billion in foreign investment inflows per year. Total approvals last year for ZED Mariel reached only some $200 million, and this year are officially projected to reach about $400 million. For many potential investors, the business climate remains too uncertain, and the project approval process too opaque and cumbersome. But the Brascuba and Unilever projects are definitely movements in the right direction.

In 2012, the 15-year old Unilever joint-venture contract came up for renegotiation. No longer satisfied with the 50/50 partnership, Cuba sought a controlling 51 percent. Cuba also wanted the JV to export at least 20% of its output.

But Unilever feared that granting its Cuban partner 51% would yield too much management control and could jeopardize brand quality. Unilever also balked at exporting products made in Cuba, where product costs were as much as one-third higher than in bigger Unilever plants in other Latin American countries.

The 2012 collapse of the Unilever contract renewal negotiations adversely affected investor perceptions of the business climate. If the Cuban government could not sustain a good working relationship with Unilever—a highly regarded, marquée multinational corporation with a global footprint—what international investor (at least one operating in the domestic consumer goods markets) could be confident of its ability to sustain a profitable long-term operation in Cuba?

In the design of the new joint venture, Cuba has allowed Unilever a majority 60% stake. Furthermore, in the old joint venture, Unilever executives complained that low salaries, as set by the government, contributed to low labor productivity. In ZED Mariel, worker salaries will be significantly higher: firms like Unilever will continue to pay the same wages to the government employment entity, but the entity’s tax will be significantly smaller, leaving a higher take-home pay for the workers. Hiring and firing will remain the domain of the official entity, however, not the joint venture.

Unilever is also looking forward to currency unification, widely anticipated for 2016. Previously, Unilever had enjoyed comfortable market shares in the hard-currency Cuban convertible currency (CUC) market, but had been largely excluded from the national currency markets, which state-owned firms had reserved for themselves. With currency unification, Unilever will be able to compete head-to-head with state-owned enterprises in a single national market.

Similarly, Brascuba will benefit from the new wage regime at Mariel and, as a consumer products firm, from currency unification. At its old location, Brascuba considered motivating and retaining talent to be among the firm’s key challenges; the higher wages in ZED Mariel will help to attract and retain high-quality labor.

Brascuba believes this is a good time for expansion. Better-paid workers at Mariel will be well motivated, and the expansion of the private sector is putting more money into consumer pockets. The joint venture will close its old facility in downtown Havana, in favor of the new facility at Mariel, sharply expanding production for both the domestic and international markets (primarily, Brazil).

A further incentive for investment today is the prospect of the lifting of U.S. economic sanctions, even if the precise timing is impossible to predict. Brascuba estimated that U.S. economic sanctions have raised its costs of doing business by some 20%. Inputs such as cigarette filters, manufacturing equipment and spare parts, and infrastructure such as information technology, must be sourced from more distant and often less cost-efficient sources.

Another sign of enhanced Cuban flexibility: neither investment is in a high technology sector, the loudly touted goal of ZED Mariel. A manufacturer of personal hygiene and home care product lines, Unilever will churn out toothpaste and soap, among other items. Brascuba will produce cigarettes. Cuban authorities now seem to accept that basic consumer products remain the bread-and-butter of any modern economy. An added benefit: international visitors will find a more ready supply of shampoo!

The Unilever and Brascuba renewals suggest a new realism in the Cuban camp. At ZED Mariel, Cuba is allowing their foreign partners to exert management control, to hire a higher-paid, better motivated workforce, and it is anticipated, to compete in a single currency market. And thanks to the forward-looking diplomacy of Raúl Castro and Barack Obama, international investors are also looking forward to the eventual lifting of U.S. economic sanctions.

This piece was originally published in Cuba Standard.

       

       

Crisis seems to be the byword for Brazil today: political crisis, economic crisis, corruption crisis. Even the 2016 Rio Olympics seem to teeter on the edge of failure, according to the governor of the state of Rio de Janeiro. Yet despite the steady drum beat of grim news, Brazil is more than likely to resume its upward trajectory within a few years. Its present economic and political troubles mask a number of positives: the strength of its democracy and a new found willingness to fight corruption at all costs. With the correct policies in place, its economy will recover in due course. The impeachment process against Dilma Rousseff will soon be over, one way or the other. The present troubles are merely a temporary detour on Brazil’s long quest to achieve major power status and a consequential role in the international system. In a world in turmoil, where geopolitical tensions are on the rise and the fabric of international politics is stressed by events such as Brexit, we should not lose sight of Brazil’s history of and potential for contributing to sustaining the liberal international order.

Brazil’s aspirations for greatness

Brazil has long aspired to grandeza (greatness) both at home and abroad. As its first ambassador to Washington, Joaquim Nabuco (1905-1910) once said, “Brazil has always been conscious of its size, and it has been governed by a prophetic sense with regard to its future.” As we document in our new book, Brazil has reached for major power status at least four times in the past 100 years: participating as a co-belligerent with the Allies in World War One and seeking a permanent seat on the Council of the League of Nations thereafter; joining the Allies in World War II and aspiring to a permanent seat on the United Nations Security Council (UNSC) in 1945; mastering nuclear technology beginning in the 1970s, including launching a covert military program (now terminated) to build a nuclear explosive device; and most recently, beginning with the presidency of Luiz Inácio Lula da Silva (2003-2011), seeking to become a leader in multilateral institutions, including actively campaigning for a permanent seat on the UNSC.

A decade ago, many Brazilians believed that this time their country was poised to secure its position as a major power. As the seventh largest economy in the world with the 10th largest defense budget and significant soft power, Brazilian leaders such as Lula saw their country as being “in the mix” of major powers who, while not able to make the international order alone, could very well shape its evolution through uncertain times together with other major powers. Certainly, they no longer saw Brazil as one of the middle or small powers, the “order takers” in the international system.

Brazil saw a new opportunity to emerge as a major power in the advent of a relatively stable and peaceful post-Cold War geopolitical order, the decade-long commodity boom that supercharged its economy after 2002, and the rise of the BRICS (Brazil, Russia, India, China, and South Africa). Between 2002 and 2013, Brazil’s virtuous trifecta—democratic consolidation, rapid economic growth, and reduced inequality—was a boon to its soft power. This combination was highly attractive to many in the developing world, contributing to Brazil’s claim to leadership on the international stage as a bridge between the global South and the great powers. International peace and stability particularly favored Brazil’s predilection for deploying soft power rather than hard power. And in the BRICS, Brazil saw an opportunity to work together with other emerging powers critical of the present international order to advance its agenda for reformed global institutions.

Rethinking Brazil’s approach to global influence

Brazil’s bridge-building strategy was effective in advancing its national interests in multilateral forums, most recently on global internet governance and global climate change. But the BRICS dimension of Brazil’s strategy detracted from its ability to influence the world’s great democracies. The BRICS identity associated Brazil with authoritarian powers—China and Russia—that were viewed by the United States and its allies, at best, as unhelpful critics and, at worst, as deliberate saboteurs of the present order. This undermined Brazil’s credibility with Washington and other leading democracies, and hindered its ability to advance its preferred policies on everything from nonproliferation to the reform of global economic institutions to the debate on humanitarian intervention. In retrospect, working more closely with other emerging democracies that seek reform of the international order, such as through the India-Brazil-South Africa association known as IBSA, would have more clearly signaled Brazil’s constructive intentions while still preserving its critical posture.

Today, the opportunities that powered Brazil’s most recent rise—post-Cold War geopolitical stability and a massive commodity boom—are receding, replaced by a more fractious and dangerous international system. Despite troubles at home, it is not too early for Brazil’s leaders to think anew about how to strengthen national capabilities and deploy them strategically to address this new environment. This includes fortifying domestic institutions, both to address the present crisis but also to restore the luster of Brazil’s soft power. It means bolstering Brazil’s hard power capabilities once the economy improves and deploying them in ways that contribute to its soft power, for example by taking on additional responsibility for leading critical international peacekeeping operations as it has in Haiti. It means thinking carefully about how to signal to the democratic great powers Brazil’s commitment to a strengthened liberal international order, even as it holds onto its own principles and works towards reform of multilateral institutions. And eventually, as Brazil completes its recovery, it means contributing more substantially to the costs of maintaining its preferred global order. A Brazil that achieves all this will be well positioned to have a positive global impact, continuing to be a strong (if sometimes critical) partner for the United States in shaping the international order.

      

Recent developments in Turkey and Israel—on energy security and domestic politics, in particular—may help pave the way for a long-awaited rapprochement between the two countries.

It’s been five and a half years since the May 2010 Israel raid on the Mavi Marmara (part of the Gaza flotilla), which soured relations between Ankara and Jerusalem. At present, they’re characterized by distrust and suspicion at the top level, personal animosity between the leaders, a limited dialogue between the two governments, and ambassadors yet to be appointed. However, trade is booming and Israeli tourists are flocking back to Turkish vacation destinations.

Wanted: Energy supply and cooperation on Syria

Turkey’s downing of a Russian SU-24 fighter jet along the Syrian border on November 24 has provoked crisis in its relationship with Russia, with Russian President Vladimir Putin characterizing Turkey’s action as “a stab in the back.” Extending beyond bilateral relations, that crisis affects Turkey’s foreign policy more broadly. For Turkey, the most critical element in this feud is its energy security. 

Turkey imports most of its natural gas from Russia, and the two sides have long been engaged in talks to expand this relationship through the proposed Turkish Stream natural gas pipeline, which would channel gas to Turkey and Europe underneath the Black Sea (circumventing Ukraine). But on November 26, Russian Minister of Development Alexi Ulyukayev announced the cancellation of the project, sending shock waves throughout Turkey. The move has prompted concerns among the Turkish leadership about the reliability of Russian gas and a corresponding search for alternative supplies in the region. In addition to discussions with Qatar and Azerbaijan, there have been more statements in recent weeks from Turkish politicians, energy companies, and others calling for talks with Israel about future natural gas imports.

The Syrian crisis is another issue on which Turkey may seek quiet Israeli support—particularly the support of Israeli intelligence, which may prove crucial to Turkish war efforts.

Politically, the timing could be convenient: the Justice and Development Party (AKP)-led government could approach Israel and begin talks where they left off nearly two years ago. The dust has settled over the November 2015 elections and the AKP is not facing any serious domestic political challenges in the near future. The ball is now in President Recep Tayyip Erdoğan’s court. He commented to reporters in Paris on November 30 that he believes he’s “able to fix ties” with Israel, hinting at his willingness to move forward. He then stated on December 13 that the “region definitely needs” Turkish-Israeli normalization, citing previous Turkish demands for compensation to the families of the victims of the Mavi Marmara incident as well as the lifting of the Gaza blockade as his conditions for normalization.

Wanted: Energy demand and cooperation on Syria

From Jerusalem’s perspective, Israeli energy security may provide a “fig leaf” for Prime Minister Benjamin Netanyahu’s government to reach out to Turkey. Netanyahu and his cabinet have been stuck for nearly a year in attempts to approve and launch a compromise between the government and the gas companies (Delek and Noble) to begin the crucial phase of development of Israel’s largest Eastern Mediterranean gas field, Leviathan. About to clear the last hurdle before launching the deal, Netanyahu is under pressure to demonstrate the national security benefits of developing the gas. In this context, he and the Minister of Energy Yuval Steinitz have said that Turkey is being seriously considered as a future export destination. In a Knesset hearing, Netanyahu went even further by revealing that Israel has recently been engaged in discussions with Turkey to further explore the export option. 

The Syrian crisis provides Israel another reason to engage with Turkey. Israel is quite weary of the situation in Syria and may benefit from Turkish analysis and intelligence on this issue. 

Politically, Netanyahu will not face problems within his narrow coalition if he decides to warm up relations with Turkey. Former Foreign Minister Avigdor Lieberman, a staunch critic of Turkey and its leadership, is no longer in office. The recently appointed Chief of Mossad (currently National Security Advisor) Yossi Cohen, in contrast, is known to be a proponent of closer ties between Israel and Turkey. 

Re-friending?

Official visits between the two sides have been increasing: in June, Israeli Ministry of Foreign Affairs’ Director General Dore Gold and his Turkish counterpart Feridun Sinirlioğlu met in Rome; in September, Professor Guven Sak (the head of the government-supported research institute of the Turkish industrialists and businessmen, TEPAV) led the first official visit to Israel by a Turkish political delegation; on December 3, Israeli news outlet NRG reported on a visit by Israeli Ministry of Foreign Affairs’ Deputy Director General for Europe, Aviv Shiron's visit to Ankara and Istanbul in an attempt to warm relations between the two countries. 

There is no love lost between Israel and Turkey, and many issues still need to be resolved. Erdoğan has stated his conditions for normalization, and Netanyahu is reportedly insisting that Turkey expel Hamas operative Saleh al-Arouri (who has been directing Hamas terrorist activities in the West Bank) from its territory, as a condition. However, the current convergence of interests may pave the way to a resolution of the crisis between these two former strategic allies. In March 2013, President Obama helped orchestrate a formal Israeli apology to Turkey over the Mavi Marmara incident. Moving forward, more American senior-level diplomacy is needed. The United States—which has been active behind the scenes—will likely need to further push the two sides toward one another.